Department of Justice Threatens Lawsuit Against Harvard in Admissions Probe

The U.S. Department of Justice is threatening to file a lawsuit against Harvard unless the school hands over student records, a request the Department made as part of its ongoing investigation into allegations of racial discrimination in the College’s admissions processes.

In a letter to Harvard’s lawyers first obtained by The Wall Street Journal, the Justice Department stated that its Civil Rights Division is investigating the University for allegedly violating Title VI, which prohibits race-based discrimination in programs receiving federal funding.

The Justice Department’s probe into allegations that Harvard’s admissions processes unfairly disadvantage Asian-American applicants came to light in August. But the investigation has stalled as Harvard has refused to turn over “a single document” to the government, according to a Nov. 17 letter from John M. Gore, acting assistant attorney general for the Civil Rights Division.

Moving forward, the Justice Department has threatened to take legal action to fulfill the document request if Harvard does not meet the new deadline of Dec. 1, according to Gore’s letter.

University spokesperson Anna Cowenhoven wrote in a statement that Harvard will comply with its Title VI responsibilities. “In the process, we have an obligation to protect the confidentiality of student and applicant files and other highly sensitive records, and we have been seeking to engage the Department of Justice in the best means of doing so,” she wrote.

Harvard’s lawyers have also raised several concerns with the Justice Department’s request.

In a series of letters from Harvard’s lawyers to the Justice Department, Seth P. Waxman ’73, a partner at the law firm representing Harvard, wrote that the investigation seemed “exceptionally unusual” given that the complaint the Department is acting on was filed over two years ago. A coalition of Asian-American groups filed that complaint in 2015, and the Department of Education dismissed it the same year, though it remained opened in the Department of Justice.

Waxman wrote in an Oct. 6 letter to Gore that it was also atypical for the Justice Department to investigate issues that are concurrently being litigated. A separate ongoing lawsuit, brought by anti-affirmative action group Students for Fair Admissions in 2014, accuses Harvard of setting illegal racial quotas in its undergraduate admissions processes.

Waxman also requested in the same letter that the Justice Department share the specific complaints filed against the University, as well as any communications about the investigation between the Justice Department, Students for Fair Admissions, and outside legal counsel.

According to the Oct. 6 letter, Harvard has asked for a confidentiality agreement regarding the use of information related to student applications, with “specific assurances that the materials would remain confidential.” The Justice Department rejected the proposal.

“[T]he Department is under no obligation to, and ordinarily does not, enter into confidentiality agreements with any entity subject to a Title VI investigation,” Matthew J. Donnelly, an attorney in the Civil Rights Division, replied in a letter obtained by the Wall Street Journal.

According to Roger Clegg, the Justice Department’s investigation may not directly interfere with the Students for Fair Admissions lawsuit, but it is likely to help it along. Clegg is the president of the conservative think tank Center for Equal Opportunity, and has formerly held positions in the Justice Department’s Civil Rights Division.

“In my experiences, having the U.S. government on your side in lawsuits is almost always a good thing and not a bad thing,” Clegg said.

Clegg said he believes the Justice Department’s threats of a lawsuit indicate the seriousness with which the Department is approaching the complaints leveled against Harvard.

“I think early on there was some question about what the Division’s approach was going to be,” Clegg said. “This shows that they are quite serious and that they’ve uncovered enough that they think that they need more information because they’re concerned that Harvard is violating the civil rights laws.”

Despite the current legal holdup, Clegg believes that the Justice Department’s investigation will ultimately find a way to move forward.

“The Justice Department is not going to be dissuaded by [Harvard], and they will continue to push,” Clegg said.